County of Los Angeles v. Allegheny Casualty Company

Under Penal Code section 1305.4,1 a surety may move to

extend a defendant’s appearance period by 180 days upon a

showing of good cause. The trial court in this case granted an

extension of 174 days, but denied a second extension motion.

On appeal, Allegheny Casualty Company argues it is entitled to

an extension for the remaining six days. Because more than 180

days had passed by the time of the hearing on Allegheny’s second

motion for extension, however, we conclude the trial court lacked

the authority to order a further extension and properly denied

the motion. (People v. Financial Casualty & Surety, Inc. (2016)

2 Cal.5th 35 (Financial Casualty).) We affirm the judgment.

PROCEDURAL HISTORY

Allegheny, through its agent, Nelly’s Bail Bonds,2 posted

three bonds on September 12, 2014, for the release of codefendants

Jesse Ortega, Antonio Delgado, and Sergy

Vagramian, who were charged with extortion in violation of

section 520. None of the co-defendants appeared for arraignment

on October 10, 2014, and bail was ordered forfeited. Notices of

forfeiture were mailed to Allegheny on October 14, 2014,

specifying the appearance period for each co-defendant would end

on April 17, 2015. On April 14, 2015, Allegheny moved to extend

the appearance periods under section 1305 to October 10, 2015.

On April 23, 2015, the motions were granted and the appearance

periods were extended 174 days to October 14, 2015, which was

365 days after the notices of forfeiture were mailed.



1 All further section references are to the Penal Code unless

otherwise specified.

2 For ease of reference, we will refer to Nelly’s Bail Bonds

and Allegheny collectively as Allegheny.

3

On October 13, 2015, Allegheny again moved to extend the

appearance periods “on the grounds of Penal Code § 1305,

§ 1305.4, and that the court lost jurisdiction over the bond.”

Allegheny calendared the motions for a November 6, 2015

hearing.

At the hearing on November 6, Allegheny’s counsel clarified

it was seeking an additional 10 days after the “initial 170 day

extension from the date of the order granted in those cases.”3

The People opposed, contending that existing case law4 supported

a holding that the surety had no more than 365 days after the

bonds were forfeited to exonerate the bonds. October 14, 2015

was 365 days after the notices of forfeiture were mailed. After

extensive argument, the trial court denied the motions on the

ground that the appearance period had expired, reasoning,

“the pendency of this motion would not have tolled the clock.”

Allegheny timely appealed in each case on November 20, 2015,

and the appeals were consolidated. On November 23, 2015,

notices of summary judgment were mailed to Allegheny.



3 Allegheny submitted proposed orders reflecting an

extension to October 10, 2015, which the trial court signed.

However, the court’s own case summaries show the extension for

each defendant was actually granted to October 14, 2015. As a

result, Allegheny erroneously requested a 10-day extension for

Delgado and Ortega. This confusion has extended to the appeal,

as we note below.

4 At the time of the hearing, the California Supreme Court

had taken up two cases addressing the issue of how to calculate

extensions of the appearance period. Since the appeal, the high

court has published its opinion on this issue, Financial Casualty,

supra, 2 Cal.5th 35, which we discuss below.

4

DISCUSSION

Allegheny contends it was “deprived of 6 days of time that

could have been used to locate these defendants.”5 Thus, it seeks

an additional six-day extension of time on the bonds, which would

result in an extension on Vagramian’s bond and exoneration of

the bonds for Ortega and Delgado.

6 We conclude no additional

time was available to Allegheny.

I. Standard of Review and Statutory Scheme

Because the pertinent facts are uncontested, the standard

of review we apply to the trial court’s interpretation of the

statutory scheme is de novo. (People v. Fairmont Specialty Group

(2009) 173 Cal.App.4th 146, 151.)

A surety acts as the guarantor of a defendant’s appearance

in court by posting a bail bond, which is subject to forfeiture if the

defendant fails to appear. (People v. American Contractors

Indemnity Co. (2004) 33 Cal.4th 653, 657.) Once the clerk of the

court mails a notice of forfeiture for the defendant’s failure to

appear in court, the surety has 185 days (180 days plus five days

for mailing) to ensure the defendant’s attendance. (§ 1305, subd.



5 There is some confusion as to how many extra days

Allegheny seeks on appeal. In its opening brief, for example,

it contends it is entitled to an additional 11-day extension and

three pages later, contends it was deprived of an additional six

days. At oral argument, Allegheny’s counsel confirmed it sought

an additional six days. There are 174 days between April 23,

2015 and October 14, 2015. Given our determination that the

appearance period had expired, however, a precise calculation is

unnecessary.

6 During the pendency of the appeal, Ortega appeared in the

underlying case on February 17, 2016, and Delgado appeared on

May 11, 2016.

5

(c).) If the defendant appears within that time, commonly known

as the appearance period, the court must vacate the forfeiture

and exonerate the bond. (§ 1305, subd. (c)(1).)

A surety may seek to extend the appearance period by

filing “a motion, based upon good cause, for an order extending

the 180-day period provided in . . . section [1305]. The motion

shall include a declaration or affidavit that states the reasons

showing good cause to extend that period. The court, upon a

hearing and a showing of good cause, may order the period

extended to a time not exceeding 180 days from its order.

A motion may be filed and calendared as provided in subdivision

(j) of Section 1305. In addition to any other notice required by

law, the moving party shall give the prosecuting agency a written

notice at least 10 court days before a hearing held pursuant to

this section as a condition precedent to granting the motion.”

(§ 1305.4.)

Subdivision (j) of section 1305, provides: “A motion filed in

a timely manner within the 180-day period may be heard within

30 days of the expiration of the 180-day period. The court may

extend the 30-day period upon a showing of good cause.

The motion may be made by the surety insurer, the bail agent,

the surety, or the depositor of money or property, any of whom

may appear in person or through an attorney.” Thus, subdivision

(j) provides a tolling period of 30 days or more in which a timely

motion for extension may be heard. The primary question in this

case is whether subdivision (j) of section 1305 applies to all

motions to extend, regardless of how many individual extensions

the court orders. If it does, it appears a trial court may order the

period extended to a time which exceeds 180 days from its initial

order.

6

We are guided in our review of the statutory language by

the California Supreme Court’s recent decision in Financial

Casualty, supra, 2 Cal.5th 35, which addresses how to calculate

an extension to the appearance period. There, notice of forfeiture

was mailed to the surety and the bail agent when the criminal

defendant failed to appear as required. Five days before the

expiration date of the initial 185-day appearance period, the

surety filed a motion for extension pursuant to section 1305.4.

The trial court granted the motion and extended the appearance

period to August 1, 2013. (Id. at p. 40.) On August 1, 2013, the

surety filed a second motion for an extension. The motion was

heard and denied on August 26, 2013, in part because the trial

court believed the total allowable extension time had run out.

It entered summary judgment on the bond on September 4, 2013.

(Id. at pp. 40-41.)

The high court rejected the People’s argument that the

maximum total allowable appearance period was the 185-day

original period plus 180 days of extension, for a total of 365 days,

running from the notice of forfeiture. (Financial Casualty, supra,

2 Cal.5th at p. 43.) Instead, the court held section 1305,

subdivision (j), allows the extension motion to be heard up to 30

days after the end of the appearance period, and the hearing may

be continued to a later date for good cause. (Id. at pp. 44-45.)

Under the plain language of section 1305.4, which allows

the trial court to order an extension of up to 180 days “from its

order,” the extension period runs from the date of the extension

order rather than from the date of expiration of the original

appearance period. (Financial Casualty, at pp. 45-46.) The court

found “that the ‘order’ referred to in section 1305.4’s limit of

extensions to 180 days ‘from its order’ is the first order extending

7

the period, rather than any subsequent order, and that the total

allowable extension is thus limited to 180 days from the date of

the first extension order, regardless of how many individual

extensions the court orders.” (Financial Casualty, supra,

2 Cal.5th at p. 46, fn. 2.)

Thus, “[t]he maximum extension that could have been

ordered was for 180 days from that date [of the first extension

order], ending on September 16, 2013. When the court heard the

surety’s second extension motion on August 26, 2013, therefore,

it had the authority to order a further extension through

September 16.” (Financial Casualty, supra, 2 Cal.5th at p. 46.)

II. The Appearance Period Had Expired

Given the high court’s holding in Financial Casualty, it is

apparent the date with which we are most concerned is April 23,

2015, the date of the first extension order. Following the high

court’s analysis in Financial Casualty, the maximum extension

that could have been ordered was for 180 days from that date,

that is, October 20, 2015. As a result, we find that when the trial

court heard Allegheny’s second extension motion on November 6,

2015, it lacked the authority to order any further extensions.

We acknowledge that the Financial Casualty court did not

expressly state that subdivision (j) of section 1305 did not toll the

time period for subsequent extension motions to be heard.

However, it is apparent that is what it intended. We are

persuaded of this by two provisions in the opinion. First, the

court concluded that the trial court “had the authority to order a

further extension through September 16 [180 days from the first

extension order].” (Financial Casualty, supra, 2 Cal.5th at p. 46.)

If the court intended to apply the 30-day provision in subdivision

(j) to a second motion to extend, it would have calculated the end

8

date differently and provided 30 or more days for a hearing.

Instead, it chose a date certain that was 180 days from the first

extension order without regard for additional hearings under

subdivision (j).

Our conclusion is supported by the court’s statement that

“the total allowable extension is thus limited to 180 days from the

date of the first extension order, regardless of how many

individual extensions the court orders.” (Financial Casualty,

supra, 2 Cal.5th at p. 46, fn. 2.) Allegheny characterizes this

statement as nonbinding dicta. However, “[e]ven if properly

characterized as dictum, statements of the Supreme Court should

be considered persuasive.” (United Steelworkers of America v.

Board of Education (1984) 162 Cal.App.3d 823, 835.)

Additionally, such dictum should be followed where it

demonstrates a thorough analysis of the issue or reflects

compelling logic. (Ibid.) We find the Supreme Court’s analysis

on this issue in Financial Casualty to be both thorough and

compelling.

Further, section 1305.4 specifies that the trial court may

order an extension “not exceeding 180 days from its order.”

If subdivision (j) applied to add 30 days or more after the

expiration of the 180-day extension period, the extension would

necessarily exceed 180 days. Thus, we are convinced that the

court meant what it said—the maximum extension period is 180

days from the first extension order. Applying those principles

here, it is apparent the trial court properly denied the motion

when it heard the matter on November 6, 2015, which is 197 days

from the first extension order.

7



7 Allegheny argues this interpretation of the statutory

scheme creates an unnecessary ambiguity in the jurisdictional

9

We are not persuaded to disregard Supreme Court

authority by relying on cases cited by Allegheny: People v.

United States Fire Ins. Co. (2015) 242 Cal.App.4th 991 (United

States Fire), People v. Accredited Surety & Casualty Co., Inc.

(2006) 137 Cal.App.4th 1349 (Accredited), or County of Los

Angeles v. Williamsburg National Ins. Co. (2015) 235 Cal.App.4th

944 (Williamsburg). None of these cases decide the issue at

hand.

In United States Fire, the court held an extension of time

under section 1305.4 was measured from the date of a trial

court’s order granting an extension motion. (United States Fire,

supra, 242 Cal.App.4th at p. 1003.) Because the 180-day period

had not yet expired, the court held that summary judgment was

premature when entered against the surety while its extension

motion was pending. In reaching its conclusion, the court

expressly declined to decide whether the gap of time from the

expiration of the first extension motion until the determination of

the second extension motion would itself be counted as part of the

appearance period or not. (Id. at pp. 1009-1010.)



timelines to enter summary judgment under section 1306,

subdivision (c). As an initial matter, this argument was raised

for the first time in the reply brief and we need not consider it.

(REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th

489, 500.) In any case, we fail to see the ambiguity. Section

1306, subdivision (c), requires summary judgment to be entered

“within 90 days after the date upon which it may first be

entered.” If a trial court grants an extension that is less than 90

days, the date upon which summary judgment may first be

entered is the expiration of the extension period, unless a further

motion is timely filed and heard. At the latest, summary

judgment must be entered within 90 days after 180 days had

passed from the first extension order.

10

The United States Fire court noted, however, that the

disposition in Williamsburg arguably supported not counting the

time gap. In Williamsburg, the court held the surety was entitled

to an oral hearing on its second motion for extension, which had

been summarily denied by the trial court on the same day it was

filed. (Williamsburg, supra, 235 Cal.App.4th at p. 954.) It thus

directed the trial court in its disposition to hold a full hearing on

the section 1305.4 motion following remand and, if the trial court

were to grant the motion, it was to order the appearance period

extended by a maximum of nine days (i.e., the remainder of the

180-day period under § 1305.4) from the date of the trial court’s

order granting such motion. (Williamsburg, at p. 956, fn. 14.)

We reject Allegheny’s argument that Williamsburg’s disposition

is persuasive because the Financial Casualty court cited it and

United States Fire with approval. Financial Casualty merely

noted that it agreed with Williamsburg’s and United States Fire’s

holding that the maximum extension is 180 days from the date of

the first extension order. (Financial Casualty, supra, 2 Cal.5th at

pp. 45-46.)

The disposition in Williamsburg, in any event, did not

address the issue at hand, whether the surety was entitled to an

additional 30 or more days under section 1305, subdivision (j),

plus the nine remaining days under section 1305.4. It did note in

the opinion that the surety “could only obtain a maximum

extension of 180 days [citations], [thus] its second motion to

extend, filed on July 22, 2013, could have extended the period for

no more than nine days.” (Williamsburg, supra, 235 Cal.App.4th

at p. 951, fn. omitted.) This language comports with the holding

in Financial Casualty establishing that the maximum extension

period is 180 days, regardless of how many individual extensions

11

are granted and which disregards the 30-day tolling period

specified in subdivision (j) of section 1305.

Accredited likewise fails to address the issue at hand.

There, the court merely concluded the trial court abused its

discretion in denying a section 1305.4 motion because the surety

demonstrated good cause to extend the forfeiture period.

(Accredited, supra, 137 Cal.App.4th 1356.) Because the

defendant was arrested within 180 days of the order denying the

extension, the summary judgment was vacated and the bond

exonerated. (Id. at p. 1360.) Contrary to Allegheny’s contention,

Accredited does not stand for the proposition that bail may be

exonerated when a defendant has been returned to custody

during the pendency of the appeal. Both Ortega and Delgado

were returned to custody well after the 180-day extension, unlike

in Accredited.

The judgments are affirmed.